73 So. 332 | Ala. | 1916
The bill of complaint is filed to enforce a vendor’s lien on land, and the allegations of the bill show by legal implication the existence of such a lien in favor of complainant in the sum of $1,86Q; this being the balance due on the purchase money, covered by respondent’s promissory note executed on December 23, 1902 (the date of the conveyance), and payable one year thereafter. The answer admits the purchase of the land and the execution of the note, as alleged, but “denies that there is any portion of the purchase money for said lands due to complainant, or that any part remains unpaid,” and further “denies that the complainant has any lien or claim of any kind upon said lands.”
We have considered all the evidence bearing upon this question. Both of these witnesses appear equally intelligent and honest, and there is nothing in the circumstances surrounding the transaction to substantially corroborate the one more than the other. In such a case, the burden of proof being upon respondent who asserts the waiver, we cannot affirm our conviction that there was an agreement of waiver between the parties, whatever may have been respondent’s individual understanding and belief.
We have not overlooked the argument that the note for $1,860 must have included something besides the balance of the purchase money — since the deed recites the total price as being $5,635, and the evidence shows that $4,000 was paid in cash. Nevertheless, it seems clear from the testimony of respondent himself that, in the adjustment of minor considerations between the parties, they fixed the net balance due on the land at $1,860— necessarily so, because there was no other transactions between them:
We cannot ascribe error to the decree appealed from, and it will be affirmed.
Affirmed.